Gretchen Sween, member of the legal writing faculty at The University of Texas School of Law and Special Counsel at Dechert LLP, has guest-posted and scored a review on Blawgletter before. Today, she takes keyboard in hand to tap out a thought piece on the things you see marching across your screen — words. We hope you enjoy it as much as we did.
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When Politicians Lambaste Judges
During the last Republican presidential debate before the upcoming Iowa caucuses, a moderator asked front-runner Newt Gingrich about comments he’d made about firing federal judges and even abolishing entire courts that reached results with which he disagreed. Gingrich did not back away from his remarks. Instead, he boldly reaffirmed this crazy concept, stating, “The courts have become grotesquely dictatorial, far too powerful. I’ve been working on this project since 2002 when the Ninth Circuit court said that ‘one nation under God’ is unconstitutional in the Pledge of Allegiance. And I decided that if you had judges that were so radically anti-American that they thought ‘one nation under God’ was wrong, they shouldn’t be on the court. Like Jefferson, Jackson, Lincoln and FDR, I would be prepared to take on the judiciary if, in fact, it did not restrict what it was doing.”
Never mind that the Ninth Circuit itself has since disavowed the opinion that Gingrich invoked as support for his position. During the recent debate, only Ron Paul had the gumption to express any real concern about firing federal judges, correctly noting that the idea offended the Founders’ commitment to separation of powers. Bachman, Perry, and Santorum jumped enthusiastically on the judge-bashing bandwagon.
I get it that federal judges are not actually a huge constituency. Politicians can refuse (and have refused) to pay them a fair wage; and a single U.S. senator can (and has) put “secret holds” on nominations to the federal bench to ensure that current judges do not get much needed help with their workloads. And these silly political machinations increase the likelihood that highly qualified individuals will decline the possibility of service on the federal bench rather than subject themselves to such indignities. Members of Congress do not see the benefit of defending the integrity of other branches of government. And many see that they can actually make inroads with some voting blocs by railing against “activist judges”—by which they seem to mean any judges who reach results that the person hurling the ad hominem does not like. So these folks mouth off, suggesting that we would somehow be better off if elected officials had the power to threaten the only branch of government not directly dependent upon a fickle electorate or well-endowed interest groups: “Give us the results we, who know only the most superficial details about a case and the governing law, think are best or else!”
Lawyers Should Know Better
While some find these kinds of assertions stirring, just as many once responded to calls to engage in lynching, such words are decidedly dangerous. Advocating that the rule of law in this country be replaced with a system reminiscent of Stalinist regimes and military juntas should horrify self-respecting lawyers of every stripe—Republican, Democrat, Green, Libertarian, or agnostic.
That is, lawyers in particular cannot idly dismiss the Gingrich rhetoric as “just words.”
“Just words” is a deceptive phrase if ever there was one. Words can hurt a great deal more than sticks or stones. And they can do as much to transform how people see the world as non-verbal deeds can. (Think of MLK’s “I Have a Dream” speech.)
Every lawyer knows that words matter tremendously. As Judge Learned Hand noted: “Words are not only the keys of persuasion, but the triggers of action.” In fact, words can themselves be actions—at least when they travel from one person to another. And I am not referring only to the kind of words that philosophers call “speech acts”—such as words consecrating a marriage (“I now pronounce you husband and wife.”). Words in motion can be criticism, praise, inspiration, provocation, education, deception, seduction, persuasion, instruction, analysis, commentary—You get the idea.
Lawyers’ power is a function of words. More specifically, lawyers wield power by using reason to develop sound arguments that are supported by recognized authorities and acceptable evidence. That is, the members of everyone’s favorite profession to hate have social power and responsibility because they sell reasonableness for a living—just using words.
The Law is replete with prohibitions based on our societal understanding that words matter. A bedrock principle of democracy is that words should flow rather freely. Yet many causes of action reflect our understanding that words can be so damaging that certain types should be discouraged: libel, slander, tortious interference with business relationships, deceptive trade practices, fraud, insurance bad faith. Other causes of action are premised on the fact that words themselves can give rise to legal rights in the form of contracts, copyright, covenants not to compete, implied and express warranties, and so forth. In short, a great deal of The Law focuses on how word usage defines the boundaries of human freedom and responsibility.
So all lawyers should understand that nothing they write or say in a professional capacity is ever “just words.” Indeed, “thinking like a lawyer” requires a heightened sensitivity toward the construction of words and the implication of analogies, a deep respect for linguistic clarity and precision, and the ability to root out irrational, or at least unsubstantiated, leaps of logic. Good lawyers despise vague formulations and declaw paper tigers by using words like razors, not cudgels.
If you took a public opinion poll, a lot of non-lawyers would probably agree that lawyers use words for a living—but would argue that lawyers do so mainly to manipulate, hide, intimidate, bludgeon. These same hypothetical respondents might even suggest that, because lawyers’ medium is “just words,” lawyers should be viewed with suspicion or even disdain. This latter sentiment is symptomatic of “logophobia.”
Lawyers Should Resist Logophobia
“Logophobia” is the irrational fear of logic. “Logos” means “words,” but in the Classical sense it also means cosmic reason, the source of order and true knowledge. A “phobia,” also from Classical Greek, refers to an illogical fear. Those who exploit logophobia use words to incite while abandoning any concern that their words are properly tethered by context, connotations, and correspondence to hard reality. They actively choose words that will interfere with their listeners’ ability to think straight, as they hope to compel action based on unbridled emotion. But as Aristotle instructed, truly persuasive discourse must strike a balance between pathos, ethos, and logos. Appeals that rely chiefly on pathos—such as calls for reactionary vengeance—may prompt action, but they do not serve the greater good.
But because logophobia exists and may seem to further their clients’ interests, plenty of lawyers, not just politicians, try to exploit it. These lawyers misuse words and invite their audience not to think. But I believe appeals to logophobia are a really bad idea. And not just because they are unethical. While politicians rely on logophobia to gain short-term advantages, lawyers engaged in actual lawyering who resort to logophobia often see their efforts backfire.
Let me tell you about a federal criminal case that I once saw tried to a verdict. The case involved white collar crimes, including massive securities fraud. The defendant was a mid-level manager whose bosses had already negotiated plea agreements with the government. He was a handsome family man and a hard-working, ambitious professional—trained as both a lawyer and an accountant. He was also the author and recipient of many e-mails describing various complex accounting transactions and observations on what should and shouldn’t be disclosed to “anyone.” At trial, the lawyer for the accused pursued a theme that went something like this: “My client don’t know nuthin’ ’bout no mark-to-market accounting. His company hired lots of fancy lawyers and accounting firms. He and the company relied on them to tell him what was right. The Government is gist tryin’ to make his young fella a scapegoat and get another notch in its gun.” To go with this theme, the lawyer, a city boy, adopted an exaggerated country accent, cowboy boots, and bad grammar.
This strategy struck me as distracting at best. Neither the lawyer nor his client was an ill-informed bumpkin. And the mismatch between the lawyer’s style and the case’s exceedingly complex substance created dissonance.
I cannot say that the jury found this bright young family man guilty on multiple criminal counts because they too felt this dissonance and thus distrusted the lawyer and, by extension, his client. Certainly, the decision to pursue this particular trial strategy was not professional malpractice. Yet the strategy did not result in the client’s prevailing in the face of the government lawyers’ plodding, methodical presentation.
Perhaps the strategy failed because the jurors took their jobs seriously. That is, citizens who are asked to do their civic duty and serve on juries are explicitly instructed not to let emotion cloud their judgment. They are supposed to assess credibility, weigh evidence, and see how the facts fit with the law as it has been described to them. And jurors mostly seem to take those instructions to heart. Therefore, when lawyers take the stage, they need to appeal to jurors’ reason. Lawyers do this by emphasizing substance in a way that makes their client’s view of reality seem more legitimate than the other side’s view. The lawyer cannot be boring or indifferent in presenting this substance. But a theatrical form alone cannot convince an impartial viewer to see it your way unless that viewer already suffers from logophobia.
Appeals to logophobia diminish the legal profession and the judicial system itself. When lawyers resort to logophobic tactics, they give fodder to those inclined to dismiss all trial lawyers as snake-oil salesmen who use theatrics to seduce juries.
Because Words Really Matter
Today, all lawyers, not just plaintiff-side personal injury lawyers, have to do business in a culture affected by prejudices engendered by champions of “tort reform” who portray our justice system as overwhelmed by “frivolous lawsuits” filed by “unscrupulous trial lawyers” seeking “jackpot justice” at the expense of poor, innocent corporate “job-creators.” But people continue to hire lawyers despite the ad hominems flying around out there because they need smart people to help them find reasonable ways to negotiate complicated, unpleasant situations. These clients’ interests are best served by lawyers who are authentic—and who understand that “authenticity” is not synonymous with a certain accent, costume, or membership in a particular club. Authenticity requires using yourself as a vessel to convey someone else’s story without recourse to logophobia and appeals to unfair or unreasonable prejudices.
Because logophobia is anathema to lawyering itself, lawyers should be willing to stand up and cry foul when someone in power starts shouting to the rabble: “First thing we do, let’s kill all the judges with whom we disagree!” Perhaps you lawyers recognize this line as an allusion to “Dick the Butcher’s” infamous suggestion that Jack Cade, leader of a bloody, bumbling uprising in Shakespeare’s Henry VI, commence his regime by eradicating all lawyers. In context, that laugh line symbolizes the highly uncivilized impulse of the logophobic—who would abolish the rule of law and bring on anarchy as a self-serving, short-term response to both real and perceived injustices. Cade says, “Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment? That parchment, being scribbled o’er, should undo a man?” And with this colorful, rhetorical question, Shakespeare succinctly captures a rather scary disdain for literacy, written agreements, and the very concept that people should be bound by the contracts they sign.
Shakespeare, mystery man though he may have been, knew that words matter. Lawyers know this, too. And because words matter—a lot—we have to acknowledge their power to do serious harm when they invite action divorced from reason.